Prevention of Corrupt Activities Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
3 November 2003
PREVENTION OF CORRUPT ACTIVITIES BILL: DELIBERATIONS

Chairperson: Advocate J de Lange (ANC)

DOCUMENTS HANDED OUT:
Prevention of Corrupt Activities Bill (Working Document No. 8)
Proposed Clause 11 - Offences respect of corrupt activities relating to procuring and withdrawal of tenders (Appendix 1)
Prevention of Corrupt Activities Options (Appendix 2)

SUMMARY
The Committee was informed on the definitions used in the Act. Members were satisfied with most of the definitions. The major problem encountered related to the interpretation clause which says that some definitions include both the negative and the positive. Some members felt that plain English should have been used in clause 2.

MINUTES
Advocate G Nel informed members that he spoke to an official from the national treasury about the registry of people who had been blacklisted from bidding for a state tender. He said that the official indicated to him that the Government decided in November 2002 that all state tender boards would be phased out. Consequently there would no longer be any state tender board. Adv Nel said that the official said that he had no problem with the establishment of the register. It had been suggested that the Director General in the Finance Department should be in charge of the register. The DG would also be allowed to designate anyone in the Department to hold the register.

Please refer to Appendix 1.

Prevention of Corrupt Activities Bill Working Draft
Please refer to attached document.

Clause 1: Definitions
Agent
The chairperson read the definition of agent and noted that two options of the definition had been provided. Option two makes reference to a person 'who has the power to affect the legal relation of his or her principal with a third party'. Ms S Camerer (DA) wondered as to what the word 'affect' means.

Advocate Nel said that the intention is to include a person who has the power to in some way influence the relations of the principal.

Animal
The Bill defines an animal as 'any mammal, bird, fish, reptile or amphibian which is a member of the phylum vertebrates. Mr J Jeffrey (ANC) had a problem with the inclusion of the words "member of the phylum vertebrates". He said that all the animals referred to in the definition are vertebrates and therefore there is no need to repeat 'vertebrates in the definition. He suggested that an animal should be defined as any vertebrate.

Advocate de Lange said that maybe the definition of an animal as found in the Animals Health Act is wrong and suggested that the presenter have a look into it. He also said that one might also exclude the definition of an animal from the Bill.

Foreign state
Advocate Masutha (ANC) asked if the definition includes a foreign vessel outside the foreign state's territorial waters.

Advocate de Lange said that it seems that a foreign vessel forms part of the foreign state even if it is outside the state's territorial waters. He referred Mr Masutha to clause 34(c).

After reading clause 34(c) Mr Masutha said that he was satisfied that there is no need to have an expanded definition of the word if the definition of a foreign state would not construed as including only those examples listed under it.

Inducement
The definition of inducement includes, inter alia, to assist a person to or not to do anything. Ms Camerer said that she was surprised to see the inclusion of 'assist' in the definition.

Judicial Officer
The presenter said that the definition of a judicial officer is new and includes under Clause 1, Option 2 xii(l), a catch all provision/definition which defines a judicial officer as any other person who presides at any trial, hearing, commission, committee or any other proceedings and who has the authority to decide causes or issues between parties and render decisions in a judicial capacity.

The chairperson felt that the definition does not cover officials of the black divorce courts and tribunals.

Mr Jeffery asked if commissioners in commissions of inquiries are covered given the fact that they did not really make a final decision on a matter even though they might make a finding and recommendations. He felt that they did not really adjudicate.

The chairperson and the presenter said that they had no problems with including commissioners in the definition.

Advocate M Masutha (ANC) said that there are different types of commissions. There are commissions which are presided over by judicial officers and departmental commissions which are appointed to investigate departmental policies.

Advocate de Lange suggested that a differentiation should be made in the Bill. It seems as if there is no need for a separate definition of commissions as they are probably covered under xii(l).

Scheme in Commerce
The presenter said that he had some discussion with a US legal expert on the definition of a scheme in commerce. He said that she advised that the definition is not necessary in South African context. The presenter proposed that the definition should be deleted hence clauses 14(b) and 15(b) would refer to a scheme and not a scheme in commerce.

Clause 2: Interpretation
Advocate Nel indicated that new subclauses have been added to the interpretation clause. He said that the intention is to make the interpretation of the Bill a lot easier. The clause provides that the definitions of some words include both the positive as well as the negative. For instance, reference to- do an act includes not to do an act and doing an act.

Please refer to Appendix 2.

Mr Jeffery and Ms Camerer found the construction of the clause very odd. Ms Camerer said that for the sake of plain English it is ridiculous to say to do an act includes doing an act.

The presenter and the chairperson said that the clause seeks to cover different tenses of the verbs. Mr Nel added that some other jurisdictions also have this kind of definition.

Mr Jeffery said that he understood the intention behind the construction but felt that there are other ways of drafting the clause.

Clause 3: General offence of corruption
The chairperson felt that the clause needs to be redrafted.

The meeting was adjourned.

Appendix 1
PROPOSED CLAUSE 11

Offences respect of corrupt activities relating to procuring and withdrawal of tenders

11. (1) Any person who, directly or indirectly, accepts or agrees or offers to accept any gratification from another person. whether for the benefit of himself or herself or for he benefit of another person. as-

(a) an inducement to, personally or by influencing any other person so to act. {improperly}---

(i) award a tender in relation to a contract for performing any work, providing any

service. supplying any article. material or substance or performing any other act. to a particular person:

(ii) upon an invitation to tender for such contract, make a tender for that contract which has as it aim to cause the tenderer to accept a particular tender: or

(iii) withdraw a tender made by him or her for such contract:

(b) a reward for acting or having acted as contemplated in paragraph (a)(i), (ii) or is guilty of an offence.

(2) Any person who, directly or indirectly

(a) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or the benefit of another person, as-

(i) an inducement to. personally or by influencing any other person so to act, {improperly} award a tender in relation to a contract for performing any work. providing any service, supplying any article, material or substance or performing any other act, to a particular person; or

(ii) a reward for acting or having acted as contemplated in subparagraph (i).

(b) with the intent to obtain a tender in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, gives or agrees or offers to give any gratification to any person who has made a tender in relation to that contract. whether for the benefit of that tenderer or any other person. as an inducement to{improperly) withdraw or as a reward for withdrawing or having withdrawn his or her tender:

(c) notwithstanding the acceptance of or offer to accept any gratification. gives any other person inside information in respect of a tender so as to enable such other person to tender. or not to tender, in a particular way in order to obtain an unfair advantage in the tender process, is guilty of an offence.

Appendix 2
Prevention of Corrupt Activities Options

OPTION 2: CLAUSE 2(4)

(4) A reference in this Act to-(a) act includes-

(i) not to act;

(ii) acting or not acting; or

(iii) having acted or not having acted;

(1)) acting includes not acting;

(c) having acted includes not having acted; or

(d) to act in a specific manner, includes not to act or not acting or not having acted in such a manner.

OPTION 1: CLAUSE 2(4)

(4) A reference in this Act to-(a) act includes-

(i) to omit to act;

(ii) acting or omitting to act; or

(iii) having acted or omitted to act; ~) acting includes omitting to act;

(c) having acted includes omitted to act; or

(d) to act in a specific manner, includes to omit to act or omitting to act or omitted to act in such a manner.

Clause 3

3. Any person, including a person in the private sector, who, directly or indirectly-

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

Q)) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person,

act, personally or by influencing another person so to act-in a manner that

(aa) amounts to the illegal, incomplete, contrived or biased; (bb) amounts to the misuse or selling of information or

material acquired in the course of the; or

(cc) adversely affects, or could adversely affect the honest, exercise, carrying out or performance of any person? 5 powers, duties or functions;

[(ii)that is unacceptable according to the normal standards of moral, social or professional behavior;]

(ii) in a manner that amounts to

(aa) the abuse of a position of authority;

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

in order to

(iii) in a manner designed to achieve an unjustified result.'

(vii) in a manner that amounts to any other unauthorized or improper inducement to do anything;

(viii) under circumstances where the person who_)

aa accepts or agrees or offers to accept the gratification as

contemplated in paragraph (a), is not authorized to so accept or agree or offer to accept any such gratification from any other person: or

(bb) gives or agrees or offers to give the gratification to any person as contemplated in paragraph (b) knows or ought reasonably to have known that such other person is not authorized to so accept or agree or offer to accept any such gratification

is guilty of the offence of corruption / an offence.